Wayne A. Logan (Florida State University - College of Law) has posted The "Alito Hypothesis" in an Era of Emboldened One-Party State Rule on SSRN. Here is the abstract:
The Supreme Court has long relied upon state legislative preferences when establishing federal constitutional norms. With capital punishment, for instance, state laws figure centrally when deciding whether a particular practice satisfies Eighth Amendment “evolving standards of decency.” In Kennedy v. Louisiana (2008), which barred execution of child rapists, Justice Alito in dissent hypothesized that the majority under counted the number of states supporting the practice, reasoning that Coker v. Georgia (1977), which barred execution for the rape of an adult woman, likely discouraged states from enacting capital child rape laws, resulting in a misleadingly low tally of state preferences.
This essay questions the viability of what I term the “Alito Hypothesis” in a time when multiple states are dominated by conservative one-party political rule, emboldened by a like-minded Supreme Court seemingly less wedded to stare decisis. Recent experience in Florida provides a case in point. In Spring 2023, the Republican super majority Florida legislature passed, and Republican Governor Ron DeSantis signed into law, a provision adding child rape to the list of death-eligible offenses. In doing so, the state made clear that it was not deterred from enacting a facially unconstitutional law, expressly proclaiming that Kennedy “was wrongly decided and an egregious infringement of the states’ power to punish the most heinous of crimes.”
If Florida’s bold approach catches on, there will likely come challenges to other constitutional precedents. These include those limiting other punishment practices (capital and non-capital), protections afforded criminal defendants, and civil liberty protections, such as the right to access contraceptives and the prohibition of poll taxes. In short, rather than being dissuaded from enacting contrarian laws, as the Alito Hypothesis would dictate, emboldened states enacting facially unconstitutional laws could well provide the basis for the Court’s reassessment of state-level preferences in multiple areas, in time possibly spearheading a major overhaul of the nation’s federal constitutional rights infrastructure.
